New Diplomatic Activities of the European Union and the Limits of International Law Ramses A. Wessel 1 ∗
[Draft – presented at the ILA Seminar, The University of Sheffield, UK, 7 November 2013] 1. Introduction The strengthening of the global ambitions of the EU,2 the establishment of the European External Action Service (EEAS) as “the first structure of a common European diplomacy”3 with ‘embassy-­‐like’ delegations all over the globe, the development of the EU as an actor in international security on the basis of its Common Security and Defence Policy (CSDP),4 or the more outspoken wish to play a role in international institutions, be it as a full member (as in the case of the WTO) or simply as a visible and audible representative (as in the UN General Assembly) all seem to point to the EU taking up ‘state-­‐functions’ in more areas than before. International law, on the other hand, is still quite traditional. Created as ‘inter-­‐state’ law it continues to struggle with the presence of non-­‐state actors in the international order.5 Yet, international organisations obviously found their place as international legal actors, and other fora and networks are also increasingly recognised as legally relevant.6 It is a truism that the European Union is not a regular international organisation. From the outset, Member States have been willing (or were forced…) to transfer competences to the Community and later the Union. The Lisbon Treaty, however, seems to herald a new phase in which not only EU law itself, but also international law may be faced with new challenges. This contribution will not primarily take the perspective of EU external relations law, but will rather attempt to view the developments from the angle of public international law. Taking an ‘outside-­‐in’ perspective allegedly highlights the possible limits of competence-­‐transfer within the EU as well as possible necessary changes in international law. I will do so by focussing on a few key areas in which the EU comes within the scope of what traditionally would be regarded as state functions and competences: the international legal status of the EU (section 2), international representation (section 3), and the EU as a diplomatic actor (section 4). The leading question can be found in the title of this contribution. Given the dynamic nature of the development of the ‘international actorness’ of the Union, this contribution will produce a research agenda, rather than final conclusions. Credits are due to Dr. Bart Van Vooren for his willingness to share some ideas that were developed in papers written jointly with him. 1
Prof.dr. Ramses A. Wessel is Professor of the Law of the European Union and other International Organizations at the University of Twente, The Netherlands (http://www.utwente.nl/mb/pa/staff/wessel/) 2
See B. Van Vooren, S. Blockmans and J. Wouters (eds.), The EU’s Role in Global Governance: The Legal Dimension, Oxford: Oxford University Press, 2013. 3
Consular and Diplomatic Protection: Legal Framework in the EU Member States, Report of the EU CARE project,; available at <http://www.careproject.eu/images/stories/ConsularAndDiplomatic-­‐Protection.pdf> (accessed 31 December 2010). 4
F. Naert, International Law Aspects of the EU’s Security and Defence Policy, Antwerp: Intersentia, 2009. 5
M. Noortmann and C. Ryngaert (eds.), Non-­‐State Actor Dynamics in International Law : From Law-­‐Takers to Law-­‐Makers, Burlington: Ashgate, 2012. 6
A. Berman and R.A. Wessel, ‘The International Legal Status of Informal International Lawmaking Bodies: Consequences for Accountability’, in: J. Pauwelyn, R.A. Wessel and J. Wouters (eds.), Informal International Lawmaking, Oxford: Oxford University Press, 2012, pp. 35-­‐62. ∗
2. The International Legal Status of the European Union post-­‐Lisbon With the succession of the European Community by the European Union on the basis of the Lisbon Treaty (Article 1 TEU), the world was confronted with an international legal actor with new competences. Prior to the Lisbon Treaty the EU did of course exist at the global stage, not only politically, but also legally – given the large number of international agreements to which it became a party.7 Yet, for many the explicit recognition of the European Union’s legal personality (Art. 47 TEU) – or perhaps even more the dissolution of the European Community8 – formed a reason to reassess the Union’s international role and to take a different perspective as to its international legal status.9 The question therefore is what the international legal nature of the European Union is post-­‐Lisbon. Why would it be important to classify the European Union under international law? The answer may very well be that a call for clarity emerges from the development of the EU as a global actor.10 As said, the Lisbon Treaty strengthens the international role of the Union in an unprecedented number of provisions. Most international rules apply to states, some (also) to international organisations and a limited set also to other internationally active entities (such as liberation movements or multinationals). Few would argue that the EU is a state;11 many would say that it is an international entity sui generis. International law, however, only works when it is applied across the board for certain categories of international actors. While it may be possible to create special rules for sui generis entities (compare the clauses on Regional Economic Integration Organisations (REIOs) in some multilateral agreements12), the rationale behind a legal system is that its rules should allow for a smooth cooperation between the different subjects. The Treaties are still silent on this issue. Art. 1 TEU merely refers to the fact that “[…] the High Contracting Parties establish among themselves a European Union” and that this Union “shall replace and succeed the European Community”. Thus, it still does not give an answer to the classic 7
R.A. Wessel, ‘The European Union as a Party to International Agreements: Shared Competences, Mixed Responsibilities’, in: A. Dashwood and M. Maresceau (eds.), Law and Practice of EU External Relations – Salient Features of a Changing Landscape, Cambridge: Cambridge University Press 2008, pp. 145-­‐180. 8
See the last sentence of Art. 1 TEU: “The Union shall replace and succeed the European Community”. The European Atomic Energy Community (Euratom) still exists as a separate international legal entity. 9
See for a recent contribution to the classic debate on the Union’s legal status: W. Schroeder, ‘Die Europäische Union als Völkerrechtssubject’, Europarecht, Beiheft 2, 2012, pp. 9-­‐23. Schroeder also refers to a purpose of the explicit recognition of the Union’s legal personality: it provides legal certainty in international relations (p.17). See earlier: R.A. Wessel, ‘The International Legal Status of the European Union’, European Foreign Affairs Review, 1997, pp. 109-­‐129; and ‘Revisiting the International Legal Status of the EU’, European Foreign Affairs Review, 2000, pp. 507-­‐537. 10
Van Vooren, Blockmans and Wouters, op.cit. 11
Although it can be argued that there are close resemblances with federations such as Canada. At the same time, international law is getting used to sub-­‐national entities to be present as international legal actors. See G.I. Hernández, ‘Federated Entities in International Law: Disintegrating the Federal State’, in: D. French (ed.), States, Peoples and Minorities: Whither the Nation in International Law?, Cambridge: Cambridge University Press, 2013, pp. 491-­‐512. 12
A REIO is commonly defined in UN protocols and conventions as “an organization constituted by sovereign states of a given region to which its member states have transferred competence in respect of matters governed by […] convention or its protocols and [which] has been duly authorized, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to it [the instruments concerned].” See for example the 2004 Energy Charter Treaty (Art. 3). See also E. Paasivirta and P.J. Kuijper, ‘Does one size fit all?: The European Community and the Responsibility of International Organisations’, Netherlands Yearbook of International Law, 2005, The Hague: T.M.C. Asser Press, 2007, pp. 169-­‐226 at 205. In the new Convention on the Rights of Persons with Disabilities the REIO clause seems to have evolved to a RIO (Regional Integration Organisation) clause, which does justice to the large scope of activities of the EU these days (see Art. 44: “’Regional integration organisation’ shall mean an organisation constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by this Convention.”) question of whether the EU is an international organisation or something else. This may be the reason that also textbooks are still uncertain about the legal nature of the Union and seem to have a preference for more political notions. Chalmers et al. refer to the EU as “amongst other things, a legal system established to deal with a series of contemporary problems and realise a set of goals that individual states felt unable to manage alone.”13 And, the “nature of the Union’s international presence” is related to its international legal personality only, whereas the nature of the entity as such is left open.14 In its famous ruling on the Lisbon Treaty, the German Constitutional Court held that the Union was “designed as an association of sovereign states (Staatenverbund) to which sovereign powers are transferred”. Yet, the further description by the Court comes close to generally accepted definitions of an international organisation: “The concept of Verbund covers a close long-­‐
term association of states which remain sovereign, an association which exercises public authority on the basis of a treaty, whose fundamental order, however, is subject to the disposal of the Member States alone and in which the peoples of their Member States, i.e. the citizens of the states, remain the subjects of democratic legitimisation.”15 Indeed, the Union’s nature is mostly defined on the basis of internal considerations. Not so much has been written on how it would be perceived by third states. A possible reason was presented by Tsagourias: “By appropriating the instruments of its creation, the Union liberated itself from external — international — contingencies and also moved the source of its validation from the international legal order to the Union.”16 Yet, irrespective of the inward-­‐looking basis for its creation and its ‘liberation’ from international contingencies, the current ambitions of the Union reveal the need to exist and be recognised as an international legal entity that somehow fits the fundamental starting points of the international legal order. So, could the EU be qualified as an international organisation? Well, when it looks like a banana and smells like a banana, it may very well be a banana. Indeed, many would agree with Curtin and Dekker “that the legal system of the European Union is most accurately analysed in terms of the institutional legal concept of an international organisation […].”17 But even this quote reveals how difficult it seems to simply argue that the European Union is an international organisation (albeit a very special one).18 Throughout their handbook on the law of international organisations, Schermers and Blokker nevertheless take the EU along as an international organisation, while noting of course the “far-­‐reaching forms of cooperation” and the “supranational features”.19 The EU is indeed “considered special not because of its identity problems but because of the high degree of 13
D. Chalmers, G. Davies and G. Monti, European Union Law, Cambridge: Cambridge University Press, 2010 nd
(2 ed.), p. 3. 14
D. Chalmers, G. Davies and G. Monti , op. cit., p. 632. 15
Entscheidungen des Bundesverfassungsgericht,; available at <www.bundesverfassungsgericht.de/entscheidungen> (accessed 30 June 2009). See also A. Steinbach, ‘The Lisbon Judgment of the German Federal Constitutional Court – New Guidance on the Limits of European Integration’, German Law Journal, 2010, p. 367. 16
N. Tsagourias, ‘Conceptualizing the Autonomy of the European Union’, in: R. Collons and N.D. White (eds.), International Organizations and the Idea of Autonomy: Institutional in the International Legal Order, London/New York: Routledge, 2011, pp. 339-­‐352 at 340. 17
D.M. Curtin and I.F. Dekker, ‘The European Union from Maastricht to Lisbon: Institutional and Legal Unity out of the Shadow’, in: P. Craig and G. De Búrca (eds.), The Evolution of EU Law, Oxford: Oxford University Press, 2011, pp. 155-­‐185 at 163. 18
Compare the qualification as “eine internationale Organisation eigener Art”, by Schroeder, op.cit. at 18. More in general, the status of the EU as an ‘international organization’; seems to be accepted implicitly by nd
many authors. Cf. P. Eeckhout, EU External Relations Law, Oxford: Oxford University Press, 2011 (2 ed.), who does not at all address the external legal nature of the EU, but merely refers to the fact that “[t]he EU is also a member of a number of other international organizations […]”(at 3, emphasis added). 19
H.G. Schermers and N.M. Blokker, International Institutional Law: Unity in Diversity, Leiden/Boston: Martinus Nijhoff Publishers, 2011, p. 55 and p. 57. ‘constitutional’ development, supranational components and the rule of law features within this organization making it look almost like a federation of states […]”, as argued by Bengoetxea in one of the few publications focussing on this question.20 As an international organisation, the EU is subject to international law in its relations with third states and other international organisations. While international law can also be part of the internal set of rules,21 this contribution’s focus is on the external dimension. There we would need to start from the presumption that the EU is bound by the international agreements to which it is a party as well as to the customary parts of international law. As more recent international law shows, it is capable of taking the differences between states and international organisations into account (see for instance the 1986 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations; or the 2011 Articles on the Responsibility of International Organisations).22 Yet, third states experience that the EU remains special. It may be an international organisation, but the fact that it is exclusively competent to act in certain areas is unprecedented, as is the rule that EU Member States feel that, in the end, they should give priority to EU law in cases of a conflict with international law.23 Indeed, as also more recent case law underlines, the Gemeinschaftstreue is believed to take precedence over international law obligations.24 While for EU Member States (and most EU lawyers) these may be logical consequences of a dynamic division of competences, third states (and most public international lawyers) would remind us of the rule of pacta tertiis nec nocent nec prosunt; third states are in principal not bound by the EU Treaty as to them it is an agreement between others.25 From a legal perspective they should not be bored with a complex division of competences that was part of a deal between the EU and its own Member States. It is indeed the division of competences in particular that continues to call for exceptions to existing rules (such as a REIO clause), the attachment of ‘declarations of competence’ to concluded international agreements,26 or the complex representation of the Union and its Member States in 20
J. Bengoetxea, ‘The EU as (More Than) an International Organization’, in: J. Klabbers and Å. Wallendahl, Research Handbook on the Law of International Organizations, Cheltenham/Northhampton: Edward Elgar Publishing, 2011, pp.448-­‐465 at 449. The author argues that it is above all the ‘transitional’ status of the EU (from international organization to federation) that justifies its ‘specialness’ (at 450). 21
E. Cannizzaro, P. Palchetti and R.A. Wessel (eds.), International Law as Law of the European Union, Boston/Leiden: Martinus Nijhoff Publishers, 2011. 22
Respectively to be found at <http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_2_1986.pdf>; and <http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_11_2011.pdf>. Obviously, the extent to which these instruments successfully take the complex position of international organizations into account may be subject to debate. 23
See more generally J. Klabbers, Treaty Conflict and the European Union, Cambridge: Cambridge University Press, 2009. 24
Examples include the Open Skies cases (e.g. Case C-­‐469/98, Commission v. Finland [2002] ECR I-­‐9627), BITs cases (Cases C-­‐205/06, Commission v. Austria [2009] ECR I-­‐1301; C-­‐249/06, Commission v. Sweden [2009] ECR I-­‐
1335; C-­‐118/07, Commission v. Finland [2009] ECR I-­‐10889), or the PFOS case (Case 246/07, Commission v. Sweden [2010] ECR 1-­‐3317 ). From a more constitutional point of view, similar arguments that international law should be applied in a way that would not harm the constitutional principles of the EU legal order were made in the Kadi case (Joined cases C-­‐402/05 P and C-­‐415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission [2008] ECR I-­‐6351). 25
This rule is laid down in Article 34 of the Vienna Convention on the Law of Treaties, adopted in Vienna, 22 of May 1969 (hereinafter: VLCT): “A treaty does not create either obligations or rights for a third State without its consent”. 26
See more extensively P.M. Olson, ‘Mixity from the Outside: The Perspective of a Treaty Partner’, in: C. Hillion and P. Koutrakos (eds.), Mixed Agreements Revisited: The EU and its Member States in the World, Oxford: Hart Publishing, 2010, pp.331-­‐348. The problem with these declarations is that the division of competences is dynamic: what can be a reasonable description for the division at the time of the conclusion of an agreement, may very well change over the years. And, although form an internal point of view the exact delimitation of other international organisations — with the EU speaking on behalf of its Member States on issues where it has a shared competences at best (as in the UN General Assembly or the Security Council) or the Member States representing the Union in areas where they already lost their individual competence (as in the International Labour Organisation). Over the years, these situations revealed that it is not always easy or practical to follow the rule that representation follows competence. However, the question of whether the Union can indeed replace its Member States is not only related to the internal competence division, but also to the applicable rules of international law. 3. International Representation by Union Delegations The Lisbon Treaty reveals the EU’s new diplomatic ambitions, in particular through the establishment of the EEAS,27 In the report of December 2011 evaluating the first year of the new Diplomatic Service, its foundation is viewed as an historic opportunity to rise above “internal debates pertaining to institutional and constitutional reform”, and instead to focus on “delivering new substance to the EU’s external action”.28 When the EEAS is to deliver this ‘new diplomatic substance’, the Treaties obviously provide binding guidance on the method and substance of EU action in the world. But at the same time, everything will have to fit into the existing international legal framework. International representation is a core element of international (diplomatic) law. The first indent of Article 3 (1) VCDR lists as a task of embassies: “Represent the sending state in the receiving state”.29 Several EU Treaty articles provide a solid basis for the Union to establish a formal and substantive presence as a single, fully matured diplomatic actor represented in third countries and international organisations (IOs).30 As regards the physical presence through its delegations, EU activities are based on Article 221 (1) TFEU, which was newly inserted with the Lisbon Treaty: “Union Delegations in third countries and at international organisations shall represent the Union.” The ambition flowing from this new provision in the TFEU should be quite clear: the Union no longer wishes to have an international presence through delegations of only one of its institutions (e.g. Commission delegations), or through the diplomats of the Member State holding the rotating Presidency.31 The working group on external relations in the European Convention pointed out that too many spoke on behalf of the EU and that “in diplomacy a lot depended on trust and personal relationships”, which require a stable and coherent presence on the part of the Union.32 The purpose of this new Treaty provision was to have “less Europeans and more EU”,33i.e. a single diplomatic presence for the Union speaking on behalf of a single legal entity active globally. When Mrs. Ashton took up her post in December 2009, she said that the EU delegations “should be a network that is the pride of Europe and the envy of the rest of the world” and “a trusted and reliable ally on European competences is not required (as confirmed by the Court in Ruling 1/78), third states may demand it, also to have some clue whom to address in cases of conflicts on the interpretation or implementation. 27
Council Decision 2010/427/EU of 26 July 2010 establishing the organization and functioning of the European External Action Service, OJ, 2010, L 201/30, 3 August 2010 (‘EEAS Decision’). 28
European External Action Service, 'Report by the High Representative to the European Parliament, the Council and the Commission', 22 December 2011, 2. See also S. Blockmans, 'The European External Action Service one year on: First signs of strengths and weaknesses’, The Hague: CLEER Working Paper, 2012/2. 29
Article 3, (a) VCDR. 30
Articles 220 & 221 TFEU io Article 3 (5) and 21 (1) TEU. 31
But see the EEAS document ‘EU Diplomatic Representation in third countries – First half of 2012’, Council of the European Union, Doc. 18975/1/11, REV 1, 11 January 2012, which reveals that in some countries the EU is still represented by a Member State. 32
‘The European Convention, Final report of Working Group VII on External Action’, CONV 459/02, Brussels, 16 December 2002, 321. 33
A. Missiroli, 'The New EU Foreign Policy System After Lisbon: A Work in Progress', European Foreign Affairs Review 25-­‐4 (2010), pp. 427 -­‐ 452. issues”.34 Speaking on Europe Day 2011 she underlined this continued ambition, that the EEAS should be a “single platform to protect European values and interests around the world”, and “a one stop shop for our partners.”35 Implementing this ambition has meant that the former ‘Commission Delegations’ have been turned into ‘Union Delegations’36 and that for all practical diplomatic purposes they are seen as EU ‘embassies’.37 In this respect, Heads of Delegations de facto act as ‘EU ambassadors’,38 with for example the letter of credence presented to President Obama by Mr. Vale de Almeira opening with the words “As I assume the role of the European Union's Ambassador and Head of Delegation to the United States [...].”39 The EU Heads of Delegations representing the Union in third states and at international organisations are thus conferred the authority to perform functions equivalent to those of national diplomats. In third states the EU aims at a status of the Heads of Delegation comparable to national ambassadors and prefers to have them listed alongside the representatives of states rather than with the representatives of international organisations.40 Accreditation of EU Heads of Delegation largely follows the general rules of international diplomatic law. Yet, the presentation of the letters of credence reflects the complex and sensitive power sharing on the side of the EU: “on behalf of the European Council President Herman van Rompuy and Commission President Jose Manuel Barroso, and under the authority of the High Representative Catherine Ashton […]”.41 In the reverse situation, the EU also continues the traditions of inter-­‐state diplomacy: it is now President Van Rompuy who receives the letters of credence of the Heads of Missions to the EU of third countries, accompanied with the usual (i.e. state-­‐like) protocol and official photograph.42 The transformation from Commission delegations into embassies proper was not purely formal, but was in some cases accompanied by added powers to at least some of those representations abroad. While all 138 Commission delegations43 were transformed into EU Delegations mere weeks after the entry into force of the Lisbon Treaty, 54 were immediately 34
Catherine Ashton, ‘Quiet diplomacy will get our voice heard’, The Times, 17 December 2009. Catherine Ashton, ‘Statement by High Representative Catherine Ashton on Europe Day’, Brussels, 7 May 2011, A 177/11. 36
European External Action Service, Report by the High Representative to the European Parliament, the Council and the Commission, 22 December 2011, 16 and see also F. Bergmüller, ‘The EEAS: A Loss for the European Commission’s External Relations Capacities?’, in: P. Quinn, (ed.), ‘Making European Diplomacy Work: Can the EEAS Deliver?’, EU Diplomacy Papers 8/2011, Bruges/Natolin: College of Europe, 2011, 14-­‐18. 37
See also the view of the European Parliament: ‘The institutional aspects of setting up the European External Action Service’, European Parliament resolution of 22 October 2009 on the institutional aspects of setting up the European External Action Service (2009/2133(INI), Art. 6(e), OJ, 2010, C-­‐265 E/9; and J. Wouters and S. Duquet, ‘The EU and International Diplomatic Law: New Horizons?’, Hague Journal of Diplomacy, 2012, pp. 31-­‐49. 38
J. Wouters and S. Duquet, op.cit., who point out that this is granted as a ‘courtesy title’ by receiving states. 39
See the introduction to the “Letter of Credentials from Ambassador Vale de Almeira to President of the United States Barack Obama.” An extract of the letter is available through the Press Release of the EU delegation to the United States ‘New EU Ambassador presents his credentials’, EU/NR 35/10 (10 August 2012). See also F. Fenton, ‘EU Ambassadors: A New Creed?’, in: P. Quinn (ed.), op.cit., pp. 26-­‐30. 40
See K. Schmalenbach, ‘Die Delegationen der Europäischen Union in Drittländern und bei internationalen Organisationen’, Europarecht, Beiheft 2, 2012, pp. 205-­‐215 at 212. 41
See the Statement of the Presentation of Credentials by Mr. Gilles Hervio, Ambassador and Head of Delegation of the European Union to Zambia, 3.2.2011 (available at <http://eeas.europa.eu/delegations/zambia/press_corner/all_news/news/2011/20110128_02_en.htm)> (accessed ...). See more extensively: K. Schmalenbach, op.cit. 42
European Council, the President, ‘Presentation of letters of credentials to President Van Rompuy’, EUCO 9/12 (Brussels, 18 January 2012). Here President Van Rompuy received the credentials of the Ambassadors of Saudi Arabia, Rwanda, FYROM, Malaysia, Colombia, Peru, Turkey and Afghanistan. 43
This is the latest number including the two newly opened delegations in Libya and the South Sudan. 35
transformed into ‘EU embassies’ in all but name.44 This meant that these ‘super-­‐missions’ were not merely given the new name, but also new powers in the form of an authorisation to speak for the entire Union (subject to approval from Brussels); and the role to co-­‐ordinate the work of the Member States’ bilateral missions. Prominent exclusions among those 54 Delegations were those to international bodies, of which there are eight: New York (UN), Geneva (UN and WTO), Vienna IAEA, UNODC, UNIDO, OSCE), Strasbourg (Council of Europe), Addis Abeba (AU), Paris (UNESCO and OECD) and Rome (FAO, WFP, IFAD, Holy Sea, and Order of Malta). The Union still has to work out how to handle EU representation in multilateral forums under Lisbon.45 However, it is certainly the EU’s ambition to ’progressively’ expand these powers to other EU Delegations as well.46 This process can be followed in the regular reports on ‘EU Diplomatic Representation in third countries’ published by the Policy Coordination Division of the EEAS, and has been recently evaluated in the December 2011 report on one year of EEAS. The latter report states that EU Delegations “have progressively taken over the responsibilities held by the rotating presidency for the co-­‐ordination of EU positions and demarches”.47 The report adds that this evolution has been a ‘mixed success’. It argues that the transition “has gone remarkably smoothly in bilateral delegations and has been welcomed by third countries”, though other reports are cautious.48 As regards EU representation at international organisations, the EEAS evaluation report states that “the situation has in general been more challenging in multilateral delegations […] given the greater complexity of legal and competence issues.”49 As far as the privileges and immunities of the Delegation are concerned, Article 5 (6) of the 2010 EEAS Decision provides the following: The High Representative shall enter into the necessary arrangements with the host country, the international organisation, or the third country concerned. In particular, the High Representative shall take the necessary measures to ensure that host States grant the Union delegations, their staff and their property, privileges and immunities equivalent to those referred to in the Vienna Convention on Diplomatic Relations of 18 April 1961. This implies that, again, the starting point is that the EU follows the state rules, rather than the rules for international organisations. The ‘arrangement’ agreed on by the High Representative and the 44
A. Rettman, ‘EU commission ‘embassies’ granted new powers’, EU Observer, 21 January 2010. Similarly, A. Rettman, ‘Ashton designates six new ‘strategic partners’, quoting an EU official on the importance of the EEAS for the role of Mrs. Ashton in external representation: “Lady Ashton has de facto 136 ambassadors at her disposal”, 16 September 2010. 46
See for example: EEAS, ‘EU diplomatic representation in third countries – second half of 2011’, 11808/2/11 REV 2 (Brussels, 25 November 2011), and EEAS, ‘EU diplomatic representation in third countries – first half of 2012’, 18975/11 (Brussels, 22 December 2011). These documents always start with two paragraphs quoting Article 221 TFEU and an excerpt from the Swedish Presidency report on the EEAS of 23 October 2009, which set out the Member States’ view on the scope of the EEAS in relation to the HR mandate. On that basis these reports continue by stating that the ‘responsibility of representation and coordination on behalf of the EU has been performed by a number of Union delegations as of 1 January 2010, or later’, and insofar as they have not taken over such functions, pre-­‐Lisbon arrangements and the role of the Presidency continue to apply. 47
European External Action Service, 'Report by the High Representative to the European Parliament, the Council and the Commission', 22 December 2011, 6. 48
Idem, 7. Kaczynski reports that there have been problems there too: in Washington, some national ambassadors apparently did not show up for local coordination meetings for months P. M. Kaczynski, 'Swimming in Murky Waters: Challenges in Developing the EU's External Representation', FII Briefing Paper 88, September 2011, 9. 49
European External Action Service, 'Report by the High Representative to the European Parliament, the Council and the Commission', 22 December 2011, p. 8. 45
third state, thus allows for a special position of the EU, which in most cases clearly differs from that of other international organisations.50 So far, the representation by the new Union delegations largely followed the pre-­‐Lisbon practice which was developed on the basis of the experience with the Commission Delegations. Representation by the Union did not replace representation by the Member States. Indeed, as Article 5 (9) of the EEAS Decision provides: “The Union Delegations shall work in close cooperation and share information with the diplomatic services of the Member States.”. Yet, ongoing budget cuts may trigger Member States to close some of their own representations and to rely more on the new ‘EU embassies’. This may be unthinkable for most of the larger Member States at this moment, and the current EEAS legal regime does not yet include this option. Obviously, any transfer of powers will depend on the consent of the Member States, as they may have good reasons to continue a bilateral representation. After all, essential elements of a relationship between a Member State and a third Member State may not be covered by the EU’s competences or a special relationship may exist between an EU state and a third country, either due to historical ties and/or geographic location.51 Nevertheless, one medium-­‐sized Member State already openly discussed the possible benefits of a transfer of certain consular tasks and the collection of information to Union Delegations.52 From the perspective of international law, ‘outsourcing’ of representation to an international organisation does not necessarily seem to be excluded. Apart from the internal division of competences, it remains difficult however, to envisage the EU representing (one of) its Member States on bilateral issues. Strictly legally speaking, one may also wonder whether the Union delegations have been given the power to represent the Member States. Article 5 (8) of the EEAS Decision merely allows the Head of Delegation “to represent the Union in the country where the delegation is accredited”. When we would define the ‘Union’ as the organisation of which the Member States are a member (and hence exclude the Member States themselves), representation would thus be limited to issues falling under the Union’s competence only. 4. Replacing the Member States in Diplomatic and Consular Relations Traditionally, diplomatic relations are established between states and the legal framework is strongly state-­‐oriented. As an international organisation enjoying international legal personality the EU is allowed to enter into legal relations with states and other international organisations. At the same time, its external competences are limited by the principle of conferral,53 and in many cases the EU is far from exclusively competent and shares its powers with the Member States. Indeed, the TEU mandates that “essential state functions”54 of the Member States are to be respected by the Union and it is in diplomatic relations in particular that one may come across these state functions.55 An important role for diplomatic missions abroad as described in Article 3 (1) VCDR is to “Protect the interests of the sending state and its nationals in the receiving state – within the limits permitted by international law”.56 There is a strong basis in the Treaties for EU ambitions on this 50
K. Schmalenbach, op.cit., p. 213. C. Cusens, ‘The EEAS vs. the National Embassies of EU Member States?’, in: P. Quinn, op.cit., pp. 11-­‐13 at 12. 52
See the report by the Netherlands Ministry for Foreign Affairs, ‘Nota modernisering Nederlandse diplomatie’ (8 April 2011) at 10 and 18; available at http://www.rijksoverheid.nl/documenten-­‐en-­‐
publicaties/notas/2011/04/08/nota-­‐modernisering-­‐nederlandse-­‐diplomatie.html (accessed ...). 53
Art. 5 TEU. 54
Cf. Art. 4 (2) TEU. 55
The EEAS Decision acknowledges this in Art. 5 (9): ‘The Union delegations shall work in close cooperation and share information with the diplomatic services of the Member States’. See also B. Van Vooren, ‘A Legal-­‐
Institutional Perspective on the European External Actions Service’, CMLR, 2011, pp. 475-­‐502, who points out that due to consistency obligations this should be read as a general obligation to cooperate between the EEAS and the national diplomatic services (at 497). 56
Article 3, (b) VCDR 51
front. Articles 3 (5) TEU and 23 TFEU together provide the basis for diplomatic protection and consular assistance to EU citizens.57 Article 3 (5) TEU obliges the EU to protect the interests of its citizens abroad; and persons holding the nationality of a Member State are citizens of the Union. (Article 20 (1) TFEU). However, Member States are divided on how far the ambitions implementing these provisions would reach. In its most long-­‐term version, if the Union were to achieve full diplomatic maturity, its most far-­‐reaching implication might be that the EU provide such protection as if they were ‘nationals of the EU’ for the purposes of international law. While Article 3 (5) TEU could accommodate that interpretation, the role explicitly foreseen in the EEAS Decision for diplomatic protection and consular assistance by the EU does not, and, again, is merely supplementary: The Union delegations shall, acting in accordance with the third paragraph of Article 35 TEU, and upon request by Member States, support the Member States in their diplomatic relations and in their role of providing consular protection to citizens of the Union in third countries on a resource-­‐neutral basis.58 Yet, in March 2011, the Commission published a state-­‐of-­‐play on this issue, where it argued that “the need of EU citizens for consular protection is expected to increase in the coming years.” 59 This does make sense, given the fact that no less than 30 million EU citizens live in a third country and about 90 million foreign trips can be counted annually.60 It argued that “[w]ith public budgets under pressure, the European Union and the Member States need to foster cooperation to optimise the effective use of resources.” 61 Some Member States have a strong interest for EU Delegations to develop a capacity for consular support for EU citizens, whereas others are clearly opposed to the EU taking such a role, since they see this as a purely national competence.62 But even the Commission is ambiguous about the role of the Union Delegations in this area. In a proposal for a new Council Directive on consular protection for citizens of the Union abroad,63 there is no clear distinct role for the Delegations and the focus remains on assistance by other Member States with a coordinating role for the EU Delegations, including in crisis situations.64 International law generally makes a distinction between consular assistance and diplomatic protection. Diplomatic protection “consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility” (Art. 1 of the 2006 Draft Articles on Diplomatic Protection). It is often considered to involve judicial proceedings, but protection of citizens may take different shapes, including the forceful protection by military missions.65 57
More specific rules as to the situations in which EDU citizens should be able to make use of this right were laid down in Decisions 95/533/EC, OJ, 1995, L 314/73 and Decision 96/409/CFSP, OJ, 1996 L 168/4. A proposal for a new Council Directive replacing and updating these decisions was presented by the Commission on 14 December 2011 (COM(2011) 881 final). 58
Art 5(10) of the EEAS Decision 59
‘Consular protection for EU citizens in third countries: State of play and way forward’, Commission Communication, COM(2011) 149 final, 23 March 2011, section 2.3. 60
E. Tichy-­‐Fisslberger, ‘Der Schutz der EU-­‐Bürger durch die diplomatischen und konsularischen Vertretungsbehörden’, Europarecht, Beiheft 2, 2012, pp. 217-­‐229 at 218. 61
‘Consular protection for EU citizens in third countries: State of play and way forward’, COM(2011) 149. 62
European External Action Service, 'Report by the High Representative to the European Parliament, the Council and the Commission', 22 December 2011, 7-­‐8. 63
COM(2011) 881 final, 14 December 2011. 64
See also Tichy-­‐Fisslberger, op.cit., p. 228. 65
See for an example J. Larik, ‘Operation Atalanta and the Protection of EU Citizens: Civis Europaeus Unheeded?’, in: J. Larik and M. Moraru (eds.), Ever-­‐Closer in Brussels – Ever-­‐Closer in the World? EU External Action after the Lisbon Treaty, EUI Working Paper LAW (2011/10), pp. 129-­‐144. Interventions outside the judicial process on behalf of nationals (issuing passports, assisting in transnational marriages, etc.) are generally not regarded as constituting diplomatic protection but as falling under consular assistance.66 For EU citizens consular assistance is mostly what they seek whenever they are in a third country and in need of some administrative actions, both in peace time and in crisis situations.67 Diplomatic protection may come up when they run into legal troubles and a governmental intervention is requested. For the purpose of this paper it is not necessary to discuss the details of the distinction as we mainly aim to point to a general development, which indicates that the EU is increasingly involved in taking up these state functions. Is it at all possible for the EU to play a state-­‐like role in these matters? With the entry into force of the Maastricht Treaty in 1993, a European citizenship was created, and the European Court of Justice even hinted at the idea of European citizenship being the primary identity of the nationals of the Member States.68 On the basis of Article 23 TFEU, EU citizens are entitled to protection by the diplomatic and consular authorities of all Member States, when his/her own country has no representation.69 The experiences since 1993 are somewhat mixed. “[…] some States consider that very little has changed since the adoption of this provision, while others are more enthusiastic about it” […].70 This may be related to the somewhat ambiguous phrasing of Article 23, which regulates the protection of EU citizens by the diplomatic missions of other Member States. It has been noted that Article 23 merely reflects a non-­‐discrimination clause as it basically states that protection is to be provided “on the same conditions as the nationals of that state”. At the same time, the conclusion of international agreements is foreseen on the basis of which third states can accept protection and assistance by an EU Member State on behalf of nationals of another EU Member State. This practice has hardly been followed.71 The fact is that, partly apart from the Treaty provisions, the EU itself seems to be well on its way to further develop is capacities in the area of consular assistance. As an answer to the differences between the 27 national legal frameworks on consular and diplomatic protection, a common EU legal framework may be developed.72 There are good reasons to believe that this development may have consequences for the diplomatic services of the Member States and that traditional international law is being sidestepped.73 In that sense, Article 23 itself already forms a good example of a deviation from general international law, as it provides for the right of EU citizens to diplomatic and consular protection of Member States other than the State of nationality in the territory of a third country.74 One of the key problems is that the relevant international rules depart from the notion of ‘nationality’, defined as “the status of belonging to a state for certain purposes of international 66
See A. Künzli, ‘Exercising Diplomatic Protection The Fine Line Between Litigation, Demarches and Consular Assistance’, ZaöRV, 2006, 321-­‐350. 67
M. Lindström, ‘EU Consular Protection in Crisis Situations’, in: S. Olsen (ed.), Crisis Management in the European Union: Cooperation in the Face of Emergencies, Berlin/Heidelberg: Springer, 2009, pp. 109-­‐126. 68
Case 184/99, Grzelczyk [2001] ECR I-­‐6193. See more generally on European citizenship: J. Shaw, The Transformation of Citizenship in the European Union. Electoral Rights and the Restructuring of Political Space, Cambridge: Cambridge University Press, 2007. 69
Art. 23 TFEU. Cf. also Art. 46 of the EU Charter. 70
See A. Vermeer-­‐Künzli, ‘Where the Law Becomes Irrelevant: Consular Assistance and the European Union’, ICLQ,2011, pp. 965-­‐995. 71
Vermeer-­‐Künzli, op.cit., pp. 269-­‐270. 72
The Commission hinted at new legislative measures in Consular protection for EU citizens in third countries: State of play and way forward, Commission Communication, COM(2011) 149 final, at 13, 23 Maart 2011. See also M. Moraru, ‘The Protection of Citizens in the World: A legal Assessment of the EU Citizen’s Right to Protection Abroad’, in Larik and Moraru, op.cit., pp. 107-­‐124, at 118. 73
Vermeer-­‐Künzli, op.cit. 74
P. Vigni, ‘The Protection of EU Citizens: The Perspective of International Law’, in J. Larik and M. Moraru (eds.), op.cit., at 92 and 101-­‐102. law”.75 Indeed, “the criterion of nationality helps to recognise the entity that is both competent and accountable to act in the name of individuals vis-­‐à-­‐vis third countries.”76 Diplomatic protection is closely related to nationality as, in principle, states can only protect their own nationals. In a classic case in 1937, the Permanent Court of International Justice argued: “In taking up the case of one of its nationals […] a State is in reality exercising its own right […]. This right is necessarily limited to intervention on behalf of its own nationals because, in the absence of a special agreement, it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection”.77 While, it may be easier for states to cooperate in consular matters, which are generally of a more administrative nature, Article 23 TFEU not only provides a right to EU citizens to consular protection, but also to diplomatic protection. Public international law academics would argue that it is in particular this dimension that cannot be established by the EU unilaterally, given the non-­‐
existence of the concept of ‘European nationality’. After all, the essential ‘solid link’ between the intervening state and the protected citizen is missing. It has, however, been argued that the ILC Draft Articles on Diplomatic Protection establish minimum standards under public international law which permits the states to go beyond these rules as long as they respect the condition of obtaining the express unanimous consent of all the states involved in the new model (both EU Member States and, at least implicitly, also by third states).78 It is true that the general international rules apply “in the absence of a special agreement” and obviously third states can simply agree to allow for the protection by states or the EU of non-­‐nationals. In any case, under international law, the consular protection of a citizen by another state requires the consent of the receiving state (Art. 8 VCCR: “Upon appropriate notification to the receiving state, a consular post of the sending state may, unless the receiving state objects, exercise consular functions in the receiving state on behalf of a third state.”) Allowing the European Union to protect the nationals of its Member States would thus be a new step. As third states are not bound by EU law they will have to recognise European citizenship to allow the EU to protect or assist its citizens abroad.79 The EU does not yet have competences in this area, but the Commission has been quite clear on its ambitions: “[i]n the longer term, the Commission will also consider the possibility of obtaining the consent of third countries to allow the Union to exercise its protection through the Commission delegations”.80 Article 23 TFEU, which now only allows Member States to protect EU citizens with the nationality of another Member States, would then be a first step in a development towards the recognition of a role of the EU itself.81 It is difficult to come up with cases in which the EU itself would have a reason to protect EU citizens abroad. The Commission mentions the case in which EU citizens are not represented and may be in need of a ‘portal’ for further assistance.82 Another situation may be when the protection of an EU citizen is required on the basis of an agreement that was concluded between the EU and a third state.83 One may expect the Union Delegations to play a role in these situations in the future, but the extent to which they can actually take up diplomatic and consular tasks ultimately depends on agreements that are to be concluded with the third countries. It has been noted that Member 75
P.Malancuk, Akehurst’s Modern Introduction to International Law, London/New York: Routledge, 2007, at 263. Cf. Art. 3 VCDR and Art. 5 VCCR. 76
Vigni, op.cit. 77
Panevezys-­‐Saldutiskis Railway Case, PCIJ Rep Series A/B No 76, 16 (1934). Also in the Nottebohm Case (Second Phase) International Court of Justice Rep 4, 22 (1955). 78
See Moraru, op.cit., p. 122. 79
Vigni, op.cit., p. 92. 80
See Effective Consular Protection in Third Countries: The Contribution of the European Union, Commission Action Plan 2007-­‐2009, COM(2007)767 final, 5 December 2007, final, at 10. Cf. also Lindström, op.cit., , p. 112. 81
A. Ianniello Saliccti, ‘The Protection of EU Citizens Abroad: Accountability, Rule of Law, Role of Consular and Diplomatic Services’, European Public Law, 2011, p. 91. 82
Ianniello Saliccti, op.cit., section 3.3.2. 83
A case in point was Case C-­‐293/95, Odigitra AAE v Council and Commission [1996] ECR I-­‐06129. States will most probably not be too eager to hand over powers in this area to the EEAS and that a revised version of the 2010 EEAS Decision will not reveal any innovations in this respect. Yet, the European integration process has its own dynamic and Member States are also known to be pragmatic (in particular in times of (financial) crises); coordination by the Union Delegations and a foreseen harmonisation of the diverging rules on the protection of nationals84 may gradually lead to an increased role for the Delegations in practice. A final note concerns nationals of third states seeking diplomatic asylum at a Union Delegation. Where diplomatic and consular protection is aimed at a states’ own nationals, diplomatic asylum may be requested by third country nationals in need of immediate protection. With the coming to age of the EU Delegations and their visible presence all around the world in crisis situations, the question of whether the EU is allowed to grant diplomatic asylum becomes more apparent. On the basis of the ‘arrangements’ between the High Representative and the third state, the premises of the mission shall be inviolable and the agents of the receiving state may not enter them, except with the consent of the Head of the Mission (Art. 22(1) Vienna Convention on Diplomatic Relations). In practical terms this will allow the Head of the Delegation to provide physical protection to anyone present at the premises. In the absence of special provisions in the agreement with the third state the legal situation remains unclear, as domestic laws may conflict with the EU agreement as well as with possibly applicable other international legal instruments, such as human rights conventions.85 5. An Emerging Research Agenda Despite its new ambitions, the EU will have a long way to go before it can actually replace its Member States in diplomatic and consular affairs. Internally, Member States will have to agree on a transfer of competences in this area, and it seems unlikely that many Member States willingly outsource elements of what is part of the very fundamentals of being a state. Yet, they have been willing to do so in other areas and further developments in the European Union (for instance related to a Common Asylum Policy) may simply make it more practical for the EU to handle, for instance, some of the consular tasks. However, it will be difficult to go beyond this on the short term. Whereas we have seen a pragmatic acceptance of a ‘contracting in’ strategy by the EU in the area of diplomatic representation (allowing, for instance, for Heads of Delegations to be accepted alongside states embassies), the diplomatic and consular protection of citizens is too much related to the notion of ‘nationality’. As one author noted: “[…] EU citizenship has not yet acquired the status of nationality (or of a similarly solid link) at international level, so as to justify the intervention of any Member State for the protection of any EU citizen, regardless of his/her nationality. One cannot deny that, in recent years, there seems to be a development of the idea that a solid link may also exist between an EU citizen and his/her Member State of residence. However, international law does not seem to have recognised the legitimacy of these new developments occurring within the EU legal system.”86 The practical implication is that third states will have to accept that the EU acts on behalf of its citizens. At the same time, the EU Member States do not seem to be willing to give up their traditional competences in his area: “consular protection is an area of Member State competence 84
As was announced in Commission Communication (2011), op.cit. See also M. Moraru, op.cit. For the United States this formed a reason to demand a special provision in the UN Headquarters Agreement (Art. III, Section 9(b)), on the basis of which the UN “shall prevent the headquarters district from becoming a refuge either for persons who are avoiding arrest under the federal, state, or local law of the United States or are required by the Government of the United States for extradition to another country, or for persons who are endeavouring to avoid service of legal process.” 86
Vignu, op.cit., p. 102. 85
and Member State competence solely”.87 As a consequence, “[r]ather than a zero-­‐sum relationship, Member States and the EU as a collective foreign policy actor may operate along-­‐side, across and in tandem with one another”.88 While this may form a solution for the short term, the EU’s ambitions seem to go beyond a mere coordinating role. International law does not per se block a further development of the EEAS (and its Delegations) in the area of diplomatic and consular protection, but further steps will not only have to be accepted by the EU Member States, but obviously also by third states (on the basis of bilateral agreements). It may be assumed that in the years to come a pragmatic acceptance of a new role of the EU will have an impact on the interpretation and perhaps even on the nature of international diplomatic law as primarily inter-­‐state law. A number of questions emerge that should be part of our research agenda for the coming years: — What are the possibilities and limits in international law to allow the EU to act on behalf of its Member States in consular and diplomatic protection; — What are the possibilities and limits in international law to allow the EU to act on behalf of itself in consular and diplomatic protection; — What are the possibilities and limits in international law to allow the Member States to transfer competences related to consular and diplomatic protection to the EU; — What are the possibilities and limits in international law to allow the EU to issue diplomatic ‘passports’ as a more structural solution to the current ‘laissez-­‐passer’ documents for EU diplomats; — What are the possibilities and limits in international law to allow the EU to deal with requests for diplomatic asylum; — Given the absence of and EU ‘territory’, to which extent is ’reciprocity’ a necessary element in diplomatic relations; — And, more generally, on which points does diplomatic and consular law need to be modified to take the position of the EU and possible other Regional Integration Organisations and their competences into account; can international organisations simply ‘contract in’ to existing inter-­‐state law? 87
Lindsröm, op.cit., p. 122 J. Bátora and B. Hocking, ‘Bilateral Diplomacy in the European Union: Towards ‘post-­‐modern’ patterns?’, Discussion Papers in Diplomacy, The Hague: Clingendael Institute, 2008, p. 6. 88